– Brandeis’ concurrence (joined by Holmes): Brandeis’ opinion was cast a concurrence, not a dissent, because Brandeis’ opinion D had not raised the appropriate constitutional claims to the trial level. But it reads like a dissent, and is one of the most eloquent on free speech. Holmes joined Brandeis’ concurrence.
– The State can only prohibit speech if “the particular restriction proposed is required in order to protect the State from destruction or from serious injury, political economic or moral…A valid restriction does not exist unless speech would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the State constitutionally may seek to prevent has been settled…In order to support a finding of clear and present danger, it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated…No danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion…Only an emergency can justify repression…The evil apprehended must be relatively serious.” This is Brandeis’ formulation of the “Clear and Present Danger” test (a test which he says was “unsettled” before this case). This has since been labeled the “Holmes-Brandeis formulation of the ‘Clear and Present Danger’ test,” since Brandeis formulated the test and Holmes concurred with it.
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